The treaty process can serve as a catalyst for effective reforms at domestic levels

Geneviève Paul, Head of Globalisation & Human Rights, FIDH (International Federation for Human Rights)

The treaty process must be used strategically – at all levels - to trigger change and improve the lives of those affected by corporate abuse

This blog is part of the debate blog series on the proposed treaty and its complementarity with the UN Guiding Principles. We believe that an inclusive and open debate is crucial to make sure these initiatives deliver for everyone, and that the business & human rights movement continues its "unity in diversity".

A take-away of the first session of the Intergovernmental Woking Group (IGWG) tasked with the elaboration of an international instrument on human rights and business that few would dispute is the active participation of civil society organisations (CSOs) from all over the world.  CSOs brought first-hand experience and in-depth analyses pointing to the shortcomings and inadequacy of existing accountability frameworks.  Their strong presence is a testament to a global civil society demand for an instrument that will succeed in helping to prevent and remedy corporate human rights abuses.

The first session proved to be promising on certain core issues such as corporate liability, complicity and access to remedy, including in conflict-affected areas. The scope of the treaty remains a contentious issue.  There seems to be a general consensus amongst many civil society organisations and panellists that – while a treaty should address the specific challenges posed by the activities of transnational corporations – all business enterprises have responsibilities.  At FIDH – and such position has also been supported by participating experts - we believe that all businesses should be part of the scope of a future instrument.

Yet, the absence of key States in the room is regrettable and must be addressed for this process to be successful.  All States must bring their differing views and arguments to the table if they are serious about upholding their human rights commitments.  This is particularly important when the same States are – at the same time – hastily concluding trade and investment agreements largely protecting investors.

The fear that this process will lead to “two track” discussions and that the UN Guiding Principles on Business and Human Rights risk being sidelined has proven to be unjustified.  During the session, the majority of participating delegations renewed their commitment to implement the UN Guiding Principles.  States – whether or not they support the process - now have to walk the talk.  All States must show their good faith by taking immediate measures at home.  They should adopt robust National Action Plans (and we have yet to see any that lives up to such definition), including legal and policy measures that can bring about the needed long-term reforms.  Rather, what we are seeing now are persistent corporate-related human rights abuses, virtually no access to justice in the majority of the cases and increasing trends of criminalization of social protests and attacks against those trying to protect their communities and the environment.  In particular, land rights defenders are being harassed and murdered in what too often remains contexts of unbridled “development”. 

Before the next session, States should hold consultations at the national level, with the effective participation of rights holders, including human rights defenders, indigenous peoples' representatives, affected women, and union representatives.  The same people should also have the opportunity to effectively and directly participate in the next IGWG session.

During the session, the majority of participating delegations renewed their commitment to implement the UN Guiding Principles.  States – whether or not they support the process - now have to walk the talk.

The way ahead will be uncertain, long and rocky.  But what's interesting is that despite being in its infancy, this process has already contributed, in some ways, to generate dynamics incentivizing States towards the adoption of reforms at the national and regional levels.

Since the adoption of resolution HRC/29 in June 2014, States have – on numerous official occasions – recognized the lack of measures taken to effectively implement the UN Guiding Principles on Business and Human Rights. Civil society organisations, such as FIDH, continue to document the limits and shortcomings of the Guiding Principles.  Most importantly, there's a growing acknowledgement – particularly in European countries home to some of the world’s largest multinational corporations - of the need to pay greater attention to the “forgotten pillar”, in other words to adopt measures to ensure victims can access justice and obtain remedy.

While so far, there is more rhetoric than action when it comes to providing victims of corporate human rights abuses concrete access to justice and guaranteeing effective prevention, the treaty process has proven –to a certain extent- useful in pushing for promising initiatives in France and Switzerland on parent companies' duty of care.  Such initiatives should be replicated in other jurisdictions: the treaty process can provide a platform for a much-needed multilateral approach to prevent and remedy corporate-related abuses and to create the space for the so-called “international level playing field”  States and companies demand. Given States' existing obligations, including in the area of labour rights, none will or should be at a supposed “disadvantage” by complying with fundamental human rights norms.  Rather than engaging in a “race to the bottom”, this process provides an opportunity for States to live up to their human rights obligations and for corporations to truly strive to meet the letter and spirit of human rights principles.

Civil society organisations will continue to demand, push for, and drive this process towards corporate accountability and access to justice.  In particular, we must ensure that, in the course of the political twists and turns that will necessarily accompany this process, there is no dilution or weakening of existing human rights standards.  Ultimately, all stakeholders engaged in this process must act in good faith, and be creative to address the complex legal challenges that remain.

Until then, let us keep the ball rolling and maintain the much needed pressure.

As the United Nations summit for the adoption of the post-2015 development agenda and the UN Conference on Climate Change approach, challenges to ensure businesses do not harm people and the planet remain enormous.  The treaty process must be used strategically – at all levels - as an opportunity to trigger change: we cannot afford not to engage in a process that could positively influence the daily lives of those affected.